Pickup Truck Rollover Litigation

Created for a plaintiff attorney in a rollover case, this chart was used by the engineering expert to educate the jury on the relevant engineering concepts:

The significance of the center of gravity height

The importance of track width

The concept of sprung vs. unsprung mass

How tire tuck and track width shift contribute to vehicle instability

A bit of automotive litigation history – IN JUNE 1978, at the height of the Ford Pinto outcry, ABC’s 20/20 reported “startling new developments”: evidence that full-size Fords, not just the subcompact Pinto, could explode when hit from behind. The show’s visual highlight was dramatic. Newly aired film from tests done at UCLA in 1967 by researchers under contract with the automaker showed a Ford sedan being rear-ended at 55 mph and bursting into a fireball.”ABC News has analyzed a great many of Ford’s secret rear-end crash tests,” confided correspondent Sylvia Chase. And they showed that if you owned a Ford–not just a Pinto, but many other models–what happened to the car in the film could happen to you. The tone was unrelentingly damning, and by the show’s end popular anchorman Hugh Downs felt constrained to add his own personal confession. “You know, I’ve advertised Ford products a few years back, Sylvia, and at the time, of course, I didn’t know and I don’t think that anybody else did that this kind of ruckus was going to unfold.” You got the idea that he would certainly think twice before repeating a mistake like that.If ABC really analyzed those UCLA test reports, it had every reason to know why the Ford in the crash film burst into flame: there was an incendiary device under it. The UCLA testers explained their methods in a 1968 report published by the Society of Automotive Engineers, fully ten years before the 20/20 episode. As they explained, one of their goals was to study how a crash fire affected the passenger compartment of a car, and to do that they needed a crash fire. But crash fires occur very seldom; in fact, the testers had tried to produce a fire in an earlier test run without an igniter but had failed. Hence their use of the incendiary device (which they clearly and fully described in their write-up) in the only test run that produced a fire.The “Beyond the Pinto” coverage gives plenty of credit to the show’s on-and off-screen expert, who “worked as a consultant with ABC News on this story, and provided us with many of the Ford crash-test records.” His name was Byron Bloch, and his role as an ABC News consultant was to prove a longstanding one; over the years he brought the network seven different exposes on auto safety, two of which won Emmys.

If the name is familiar, it’s because the very same Byron Bloch starred as NBC’s on-screen expert in the ill-fated Dateline episode. Bloch was present at the Indiana crash scene, and defended the tests afterward. (“There was nothing wrong with what happened in Indianapolis,” he told Reuters. “The so-called devices underneath the pickup truck are really a lot of smoke that GM is blowing to divert you away from the punitive damages in the Moseley case.”) And he played a key role in assuring NBC the truck fire had been set off by a headlight filament, providing a crucial excuse for not mentioning the igniters. (A later analysis for GM found the fire had started near the igniters, not the headlights.)

In 1978, as in 1992, Bloch wore two hats. One was as paid or unpaid network consultant, advisor, and onscreen explainer. The other was as the single best-known expert witness hired by trial lawyers in high-stakes injury lawsuits against automakers.

After NBC’s downfall, 60 Minutes executive producer Don Hewitt was all over the media proclaiming that such things were unheard of at _his_ show. “If that had happened at “60 Minutes ,” he said of NBC’s failure to disclose the rocket use, “I’d be looking for a job tomorrow.” Hewitt claimed not even to know why NBC might have wanted to plant the rockets. “I can’t for the life of me figure out why anybody would do that,” he said on Crossfire. “It’s not something anybody at 60 Minutes would do.”

Which, in context, can be read as a sort of Gary Hart Memorial Dare. Shall we take it up?

In December 1980, 60 Minutes reported that the small army-style “CJ” Jeep was dangerously apt to roll over–not only in emergencies but “even in routine road circumstances at relatively low speeds.” A Jeep is shown crashing. “We’ll get to precisely what the conditions were that made that single-car accident happen in a moment,” promises Morley Safer.

Clearly, over the years, the plaintiff’s bar has contributed greatly to automotive safety. From exploding gas tanks, faulty tires, faulty brakes, NO seat belts, bad seat belts, bad tires, bad floor mats; for crying out loud! It’s nice that modern cars are so much safer. It’s a testament to the fact that our judicial system can affect social change and it does work. It just works slowly and takes herculean efforts. This is especially true as of 2010.

Recent Case News:

Story by Adam Penenberg Friday September 3, 2010

Fast Company’s Adam L. Penenberg tweets the breaking news about a verdict against Ford in the death of rising Mets star Brian Cole.As reporters lagged behind on the story, Penenberg discovered a new media use for the 140-character format.

When a rural Mississippi jury awarded $131 million to the family of a star New York Mets prospect killed when his Ford Explorer rolled over in 2001, there were no reporters present, no bloggers, TV crews or radio stringers. In this age of instantaneous media, when being first is celebrated more than being right, and wire services like Bloomberg trumpet beating the competition by nanoseconds, there are still those rare moments when a major story breaks and no one is there to report it.

And this was a major story. It involved a top New York Mets prospect, Brian Cole, who former Mets General Manager Jim Duquette predicted would become a major league star, joining Jose Reyes and David Wright as the cornerstones of the team for years to come. Cole was traveling from spring training when the Ford Explorer he was driving rolled over, killing him. His cousin, also in the car, walked away from the accident relatively unscathed.
There are a number of reasons why this case is special: As any plaintiff’s attorney will tell you, death cases are almost always worth far less than injury cases. It’s simple math: Paying for 30 years of care for a quadriplegic–it can reach several hundred thousand dollars a year–costs far more than paying most people’s estimated lifetime earnings. Cole’s case was different. The Mets stipulated that it had projected that Cole would be a star and earn more than $100 million in salary over his career. Then you had the defendant: Ford, which normally settles these kinds of cases. The third wild card was the plaintiff’s lead attorney, Tab Turner, a one-man litigation machine who has settled more than $1 billion in rollover cases with Ford over the past two decades. He is perhaps Ford’s greatest nemesis.

So you have a $131 million verdict against a major corporation by a jury that found that one of its most popular (and profitable vehicles) was essentially defective, a future NY Mets star whose life was tragically cut short, a top litigator, and no media coverage?
Enter Twitter and an idea expounded upon recently by William Gibson in a New York Times op-ed piece. His subject is Google and its CEO Eric Schmidt’s controversial statement that people want Google to tell them what to do next. He suggests that Google is not just a very big corporation but us, “individual retinal cells of the surveillant.” Social media’s like that. Usually journalists report. Twitter responds. And then journalists, particularly on the 24-hour cable news networks, trot out social media chatter as self-congratulation or faux populism. In this case, social media was the vehicle by which the most relevant reporting rose to the top–the rare instance when the most trusted name in news was Twitter.

I found out about it when a representative of Tab Turner called me minutes after the jury came back with the verdict. In 2003 I had published a book, Tragic Indifference, which detailed the whole Ford and Firestone debacle of the late 1990s into 2001. Turner played a major role in the narrative, and Michael Douglas optioned the book with the intent to produce a movie and star as Tab Turner. (It’s still in what Hollywood suits call “deep development.”) When I searched online for articles on the verdict, there were none. The only mention of Ford on The New York Times home page was an advertisement for the Ford Fusion. Nothing on the wires, blogs, or Google News.

So I got on Twitter, dashing off a two-hour burst of tweets about the case and why it was big news. I told the horrific tales of rollover accident victims and shared some of my reporting on the Ford Explorer, which Ford’s own internal documents showed was dangerously unstable. I offered context for the verdict, linked to previous articles on two earlier trials that had ended in hung juries, and berated journalists for not getting on the story. I was live tweeting my reporting and analysis simultaneously, using micro blogging as my publisher, which was, as the Muck Rack Daily would put it the next day, “a very interesting use of Twitter.”

Partway through my Tweetapoolaza, the first news story–a tiny article–appeared on a local Mississippi newspaper site. Then came an Associated Press piece and a post on ESPN. The New York Daily News tweeted me back, promising me they were on the case. The next day, though, there was only a brief three-sentence mention of the case and muted coverage of it elsewhere. Most of it was of the “he said, she said” sort of journalism: a lede ($131 million verdict against Ford the fact the two sides settled before punitive damages could be accessed), a quote from Tab Turner speaking for the family, and a quote from Ford blaming the driver. Other stories focused on Cole as a baseball prospect. None of them explained what the real problem was: The Ford Explorer.
There is ample proof that more than 4 million Ford Explorers were dangerously unstable and prone to rolling over at far higher rates than other vehicles, including other popular SUVs. In fact, according to government accident statistics, one in every 2,700 Ford Explorers built between 1990 and 2001 (when Ford finally reengineered the vehicle) rolled over and killed at least one person in the car.

The figures for the Ford Bronco II, the precursor of the Ford Explorer, are even more frightening: one in 500 Bronco IIs ever produced was involved in a fatal rollover. But you won’t find many publications willing to go there. Perhaps they are fearful of losing Ford advertising dollars.
Here’s a portion of my tweetstream in reverse order to make it easier to read, telling the story 140 characters at a time (some typos have been cleaned up):
Miss. jury awards $131 million in damages to family of Brian Cole, killed in Ford Explorer rollover accident. No news media there.

Amazing in this age of instant media that a jury returns w $131M verdict against a major corporation and no reporter/blogger there.

The case involved Brian Cole, a top prospect for the NY Mets, killed in 2001 when his Ford Explorer rolled over: http://tinyurl.com/35m3th7
The New York Mets believed that Cole would be a major league star: http://tinyurl.com/y9878vy
Researching “Tragic Indifference” I learned 1 in 2,700 Ford Explorers built bet 1990 – 2001 rolled over, *killed* someone in the car.

And Ford Bronco II, precursor to Explorer, was way worse: 1 in 500 Broncos ever produced rolled over, killed someone in the car.
C’mon reporters. Am I only one who thinks $131 MILLION verdict against FORD in a product liability suit is news??
Dear reporters: You won’t get the story by sitting on your asses surfing Google News or PR Newswire. You have to make some phone calls.
Checked NYTimes.com. Nothing on Ford Explorer rollover verdict.

Last story: “Ford Replacing Classic Police Cruiser With an S.U.V.” Gawd.
Dear Editors: Story involves huge verdict v major corporation, NY Mets star in the wings, grieving family, all-star attorney.
Former NY Mets GM Jim Duquette said, Cole “would’ve come on the scene right with Jose Reyes in 2003.” http://tinyurl.com/y9878vy
Mookie Wilson testified in the previous trial that ended in mistrial earlier this year. The kid was heading home to Miss. to see his family.
Huzzah for Local newspaper w 1st story: RT @felixsalmon: The first tiny story: http://tinyurl.com/37xc5wr

Why was Ford Explorer so dangerous? 1st, built on Ford Ranger pickup assembly lines so too narrow. Also, too high. Roof metal v weak.
In fact, if you took a Ford Explorer from 1990 – 2001, flipped it upside down, lowered on roof, it would cave in from own weight.
Ford forbid its own test drivers from test driving Explorers in eqarly 1990s because they rolled over, too dangerous.

Ford management knew of the risks. They experienced it w Ford Bronco, which Consumer Reports said was unstable and dangerous to drive.
Ford Bronco II was a pickup truck with a roof pasted on top. 1 in 500 rolled over and killed at least 1 person in the car.
Imagine if 1 in 500 computers blew up if you plugged it in or even if 1 in 500 tennis racquets disintegrated after a month = RECALL.
One lawyer, Tab Turner, won $25 million verdict v Ford in 1990s Bronco II rollover case. Settled w Ford more than $1 BILLION over 20 years.
I read countless accident reports involving Explorer rollovers. They all followed same basic script.

Either driver swerves to avoid other car or obstruction or tire detreads at highway speed. With most cars, pull over, put on spare.
With a Ford Explorer, you end up swerving, correct thru steering, say, right. Car still out of control. Turn wheel again and you roll over.
One woman, Jana Fuqua, was cut off on highway. She avoided car, swerved, tried to gain control, and was found partially ejected thru sunroof.
Fuqua was still fastened in her seatbelt when she was found, rendered a vegetable.

Mark Arndt, professional test driver, was testing a Ford Explorer on a test track. The car was outfitted with outriggers and reinforced cage.
Arndt got the Explorer to 70 MPH, the tire tread peeled off as planned, and he lost control. The car shot off road within fraction of a sec.
Arndt, a pro test driver, never had an outrigger break on a test. Until now. The Explorer rolled over so hard the outrigger jammed in ground.
It shattered, and the Explorer rolled over. Arndt had read a lot of Explorer accident reports. He had presence of mind to stick hands up.
His head brushed against the roof as the cabin around him caved in. He pushed up as hard as he culd, trying to keep butt pinned to seat….

Now back to 1993

It Didn’t Start With Dateline NBC
By Walter Olson
National Review, June 21, 1993

* * *

An “electronic Titanic”–as Howard Rosenberg of the Los Angeles Times called it—“an unprecedented disaster in the annals of network news, and perhaps the biggest TV scam since the Quiz Scandals.” To many, NBC’s Dateline fiasco seemed a freak, a bizarre departure from accepted network standards. Would any half-awake news organization have helped stage a crash test that was rigged to get a particular outcome? Or concealed from the public key elements–the hidden rockets, the over-filled tank, the loose gas cap? Or entrusted its judgment to axe-grinding “experts” who were deeply involved in litigating against the expose’s target? Or, after questions came up, refused to apologize no matter how strong the evidence grew?

NBC was a latecomer to the safety-expose game, and had come under cost-cutting pressure. Maybe it lacked the high-minded public spirit and adequate research budget that was said to typify perennial Emmy-bait series like 60 Minutes (CBS) and 20/20 (ABC). And indeed, both CBS and ABC put out word that “their standards forbid the sort of staging that got NBC into trouble,” to quote a second L.A. Times reporter.

If you think so, read on. An investigation of past network auto-safety coverage reveals that both CBS and ABC have run the same sorts of grossly misleading crash videos and simulations, withheld the same sorts of material facts about the tests, and relied on the same dubious experts with the same ties to the plaintiffs bar. In at least one documented case — another is rumored–viewers were shown a crash fire and explosion without being told it had been started by an incendiary device. Dateline committed many journalistic sins. But not least was that it couldn’t even manage to be original.